In the first part of this series on knowing your Constitutional rights we covered when “Mirandizing” comes into play and what that means for you and your rights. 

Do you know your rights regarding search and seizure? Another person I ran into in criminal court who “knew her rights” was a woman who was pulled over for speeding and when the officer approached her vehicle, she handed him her marijuana pipe, saying, “Here, you can have it. It’s clogged anyway.” This criminal law genius argued that the officer needed probable cause to stop her and a search warrant to take and test her marijuana pipe. Was she right? A search warrant is only one way for law enforcement to legally seize evidence. There are several doctrines which allow law enforcement to legally seize evidence without a warrant. The most common doctrines allowing warrantless searches are:

1. Police have probable cause to believe a crime has or is being committed.
2. Search incident to arrest: a search that occurs as a result of a lawful arrest.
3. Abandoned property: if the evidence is abandoned without coercion.
4. Consent: if consent is given to search – this consent is usually contained in probation or parole agreements as well as in situations where police ask for consent.
5. As a result of “Terry frisk:” if an officer has reasonable suspicion the subject being frisked might be armed.
6. Inventory searches: for example, if your car is legally impounded – as long as the police follow their inventory policy, any evidence located will generally be admissible.
7. Exigent circumstances: events which urgently require action.
8. Plain view: where an officer is legally in a position where he/she can plainly see evidence of a crime.

These exceptions to the requirement of a search warrant are very fact specific as to whether the evidence will be allowed. The caselaw is very specific. If you believe a law enforcement search was improper, ask an attorney. The woman who “knew her rights” was wrong. Can you guess which of the above exceptions was used in court? The officer’s seizure of her marijuana pipe was lawful and she was convicted. See my future blogs for information on when an officer can legally pull you over.

 

Abigail Fillman is a 2007 graduate of the Temple University School of Law
and specializes in Criminal Defense, Insurance Defense and Family Law at Weber Kracht and Chellew.

This blog is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.